We learnt recently that the legal opinions about whether “keyword advertising” constitutes infringement between the Fair Trade Commission and the Intellectual Property Court in Taiwan are different.
The Fair Trade Commission follows the Fair Trade Law and focuses on whether the “keyword advertising” constitutes unfair competition or infringements of commercial goodwill by using other’s marks or trademarks to increase consumers’ visit to one’s website. So, when one uses other’s trademark on his/her website as “keyword advertising”, it will violate Fair Trade Law.
On the other hand, the Intellectual Property Court follows the Trademark Act in Taiwan and focuses on whether the “keyword advertising” violates the Trademark Act, Article 6 about the use of a trademark:
<blockquote>
<strong>Article 6</strong>
The term, use of trademark, as referred to in this Act connotes the utilization for marketing purpose of trademark on goods, services or relevant articles thereof, or the utilization through means of two-dimensional graphic, audio and visual digitization, electronic media, or other mediums to sufficiently make relevant consumers recognize it as a trademark.</blockquote>
If the “keyword advertising” is not used as a trademark on a website, it would not violate the said Trademark Act.
